Jackson v. Auger

• Decision Date: 18 February 1976
• Docket Number: No. 2--58156,2--58156
• Citation: 239 N.W.2d 180
• Parties: William R. JACKSON, Appellant, v. Calvin AUGER, Appellee.
• Court: Iowa Supreme Court

Page 180

239 N.W.2d 180

William R. JACKSON, Appellant, v. Calvin AUGER, Appellee.

No. 2--58156.

Supreme Court of Iowa.

Feb. 18, 1976.

Mark C. Smith, West Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Earl W. Roberts, Asst. Atty. Gen., Ray A. Fenton, County Atty., for appellee.

Heard by MOORE, C.J., and RAWLINGS, UHLENHOPP, REYNOLDSON and McCORMICK, JJ.

McCORMICK, Justice.

This is an appeal from denial of postconviction relief. Petitioner William R. Jackson was convicted and sentenced in 1972 on a charge of going armed with intent in violation of § 695.1, The Code. He did not appeal. In this postconviction action he contends he was denied effective assistance of counsel at his trial contrary to the Sixth and Fourteenth Amendments of the United States Constitution and Article I, § 10, of the Iowa Constitution. The trial court found his contention unmeritorious. We affirm.

Petitioner's claim rests on two grounds. One is an assertion his attorney had an impermissible conflict of interest because he was also representing an alleged accomplice whose case was still pending on appeal. The other is an assertion he was inadequately advised and assisted regarding perfecting an appeal. He has been resourcefully and diligently represented by able counsel in this postconviction action.

The only witnesses in the postconviction hearing were petitioner and his trial counsel, Raymond G. Gazzo. Petitioner testified he was originally represented successively by William Davis and Roger P. Owens. His case was pending trial eight or nine months. Petitioner was admitted to bail during that period. About a week or week and one-half before trial was scheduled, Owens entered the Polk County Offender advocate's office and withdrew as defendant's lawyer. Attorney Gazzo was then appointed to represent petitioner. Petitioner testified his only contacts with Gazzo before trial consisted of two telephone conversations and a meeting the day before trial.

Petitioner said he mentioned to Gazzo the question of his intoxication at the time of the alleged offense and knew of witnesses who might testify on that issue. He said he did not know whether Gazzo talked to those persons. He testified Gazzo told him he had represented Fred Ware, an alleged accomplice in the incident, in his earlier trial. Ware had been convicted and his case was pending on appeal at the time petitioner was brought to trial. Petitioner said there was no discussion about calling Ware as a witness for him.

Shortly before trial petitioner sought a change in lawyers. His expressed reason was that he and Gazzo had not had enough time together before the case was scheduled to be tried. The trial judge refused to permit a last minute change in court-appointed counsel.

Petitioner, upon advice of attorney Gazzo, elected not to testify in his own defense. He was found guilty and sentenced. After sentencing he discussed the question of appeal with Gazzo. He testified that he and his wife directed Gazzo to perfect an appeal for him but Gazzo failed to do so. He said Gazzo told him an appeal would have no merit.

Attorney Gazzo testified he had become familiar with the Jackson case when he was appointed to represent Ware in November 1971. He said he discussed it with attorney Davis while preparing for the Ware trial which occurred in February 1972. Ware did not testify in his own trial. His case was defended on a theory he could not be identified as a participant in the offense. He was convicted and sentenced. An appeal was taken on a claim the trial court erred in overruling a defense motion for mistrial. This appeal, later successful, State v. Ware, 205 N.W.2d 700 (Iowa 1973), was pending at the time petitioner was tried. The Ware appeal was decided March 28, 1973.

After the Ware trial Gazzo was consulted by attorneys Davis and Owens as they prepared for petitioner's trial. It was at Owens' suggestion that Gazzo was appointed to represent petitioner when Owens withdrew.

Gazzo testified regarding trial preparation. He said he knew what evidence was available from his experience in representing Ware. He discussed trial strategy with petitioner. He said he had explored the intoxication defense in his discussions with petitioner's prior counsel and had rejected it. He believed petitioner would have more to lose by taking the stand in support of an intoxication defense and exposing himself to cross-examination than he would expect to gain. He also said he did not call Ware to testify in petitioner's trial because he did not believe Ware could offer any testimony which would be helpful to petitioner. In fact, he believed any testimony by Ware would adversely affect petitioner's case. He testified petitioner did not object, make any contrary suggestions about trial strategy or complain about his representation to him at any time. He denied a conflict of interest. In fact, he contended his prior experience in the Ware trial was a positive advantage in representing Jackson.

Gazzo acknowledged discussing the question of appeal with petitioner and later petitioner's wife after petitioner was sentenced. He said he advised them candidly he thought an appeal would be without merit, and he insisted he was not asked to take an appeal in the case. He said he would have pursued an appeal if he had been directed to do so.

The postconviction court found against petitioner's contention. The court found Gazzo had competently and ably represented petitioner at trial and also found from the evidence that petitioner 'at no time told Mr. Gazzo that he wanted to appeal his conviction to the Supreme Court'. The court concluded petitioner's claim of denial of effective representation was without merit and dismissed the petition.

Since petitioner has alleged a violation of a basic constitutional safeguard, his right to counsel, we make our own evaluation of the totality of the circumstances under which the postconviction court's ruling was made. Hightower v. Peterson, 235 N.W.2d 313, 316--317 (Iowa 1975).

I. Dual representation. Dual representation occurs when persons jointly charged are represented by the same lawyer. State v. Gatewood, 179 N.W.2d 520, 521 (Iowa 1970). In the present situation, even though petitioner and Ware were not tried together, they were jointly charged and during the time attorney Gazzo represented petitioner he still represented Ware. This was dual representation. United States ex rel. Clark v. Guy, 386 F.Supp. 1175 (E.D.Pa.1974).

We have previously attempted to discourage dual representation. State v. Gatewood, 179 N.W.2d 520 (Iowa 1970); State v. Karston, 247 Iowa 32, 72 N.W.2d 463 (1955). We have done so in a desire to prevent counsel from being placed in a position where a conflict of interest may arise. The present case illustrates that our admonition has not been effective to eliminate the practice. See also State v. Donohue, 207 N.W.2d 750 (...